Boylan and Repatriation Commission (Veterans' entitlements) - [2023] AATA 2052

Boylan and Repatriation Commission (Veterans' entitlements) [2023] AATA 2052 (13 July 2023)
Division:VETERANS' APPEALS DIVISION
File Number:2020/8467
Re:Kevin Boylan
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:13 July 2023
Place:Brisbane

The Tribunal sets aside the decision under review and in substitution decides that the Veteran is entitled to be paid the pension at the Special Rate from 7 January 2019 with effect from 21 June 2020.
..........................[SGD]...........................
Member D Mitchell

CATCHWORDS
VETERANS’ AFFAIRS – special rate pension – incapacity from service-caused conditions – prevented from being able to continue to undertake remunerative work that he was undertaking – alone test – loss of salary or wages – date of effect of decision where application for review was made outside the 3 month window – decision under review set aside and new decision substituted
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth)
CASES
Banovich v Repatriation Commission [1986] FCA 397
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Watkins (2015) 228 FCR 573
Richmond v Repatriation Commission[2014] FCA 272
Roberts and Repatriation Commission [1992] AATA 76; (1992) 15 AAR 192; (1992) 26 ALD 611
Smith v Repatriation Commission [2014] FCAFC
Wright and Repatriation Commission (2005) 144 FCR 302
REASONS FOR DECISION
Member D Mitchell
13 July 2023
INTRODUCTION

Mr Kevin Boylan (the Veteran) made a claim for disability pension for “left knee Chondromalacia patella”, “bilateral osteoarthritis of the knees” and “aggravation of multiple enthesopathies” dated 22 March 2018. The Respondent received that claim on the same day.[1]
[1] Exhibit 1, T Documents, T13, pages 76-86, Claim for Disability Pension (received 01.05.2018).
On 5 July 2019, the Respondent issued a determination accepting the Veteran’s claim for “osteoarthritis left and right knee” and increased his rate of pension to 100% of the General Rate with effect from 1 February 2018.[2]
[2] Exhibit 1, T Documents, T30, pages 165-174, Determination.
On 17 July 2019, the Veteran sought review of that decision.[3]
[3] Exhibit 1, T Documents, T31, pages 175-178, Veteran’s request for review and income tax return for year ended 30 June 2017.
On 19 February 2020, the Veterans’ Review Board (VRB) issued a reviewable decision affirming the Respondent’s determination of 5 June 2019.[4]
[4] Exhibit 1, T Documents, T32, pages 179-183, Decision of VRB.
On 21 December 2020, the Veteran made an Application for Review of a Decision to the Tribunal seeking review of the VRB decision.[5]
[5] Exhibit 1, T Documents, T2, pages 3-5, Application for Review.
On 17 February 2021, the Veteran made an Application for an Extension of Time to Lodge an Application for Review of a Decision. The Respondent did not oppose the granting of an extension of time. Subsequently on 5 March 2021, the Tribunal granted the Veteran’s application for an Extension of Time to Lodge an Application for Review of a Decision.
BACKGROUND
The Veteran enlisted in the Australian Army on 19 March 1974 and served in the Royal Australian Signals Corp. He discharged on 8 October 1995 with the rank of Warrant Officer Class 1.[6]
[6] Exhibit 1, T Documents, T37, page 256, Record of Service.
The Veteran turned 65 in April 2019.
After discharging from the Army, the Veteran had a long and successful career in various roles in the telecommunication sector. The Veteran’s post service employment history has been summarised as follows:[7]
·1995-1996:   Telecommunications Engineer with Pacific Star Telecommunications.
·1996-1997: Connections Manager with Axicop/Primus Telecom.
·1997-2000: Manager CTG with Ansett Airlines.
·2000-2002:   Asia Pacific Manager with Nortel Networks.
·2003-2016:   Manager/Telecommunications Engineer with Ergon Energy.
·May–October 2017: Senior Accounts Manager with RCS Telecommunications.
[7]     Exhibit 2, Joint Hearing Book, A4, page 18, Report of Dr Chris Cunneen.
On 25 June 2015 and 7 July 2015, the Veteran reported right knee pain to Dr David Ellis, his general practitioner and was sent for an x-ray and MRI of his right knee.[8]
[8] Exhibit 2, Joint Hearing Book, S3, pages 194-195, Records of Ferny Fair Medical Clinic.
On 13 July 2015, Dr Ellis referred the Veteran to Dr Andrew Patten, orthopaedic surgeon.[9]
[9] Exhibit 2, Joint Hearing Book, S3, page 195, Records of Ferny Fair Medical Clinic.
On 16 July 2015, the Veteran saw Dr Patten[10] and subsequently on 21 July 2015 underwent a right knee arthroscopic debridement.[11]
[10] Exhibit 2, Joint Hearing Book, S4, page 407, Records of Dr Andrew Patten.
[11] Exhibit 2, Joint Hearing Book, S4, pages 409-413, Records of Dr Andrew Patten.
On 26 October 2015, the Veteran reported left knee symptoms to Dr Patten.[12]
[12] Exhibit 2, Joint Hearing Book, S4, page 415.
Both knees subsequently deteriorated.[13]
[13] Exhibit 2, Joint Hearing Book, S4, pages 415-422.
On 7 December 2015, the Veteran saw Dr Ellis who recorded that both knees have pain and disability and provided a further letter to Dr Patten.[14]
[14] Exhibit 2, Joint Hearing Book, S3, pages 196-197.
On 7 June 2016, the Veteran made an expression of interest for voluntary retrenchment and on 22 July 2016 his employer Ergon Energy advised him that his position of Manager Nexium was redundant.[15]
[15] Exhibit 2, Joint Hearing Book, S1, pages 129-132.
On 25 August 2016, the Veteran underwent a right knee replacement by Dr Patten who provided an operative diagnosis of “right knee osteoarthritis”.[16] He returned to work 6 weeks later.[17]
[16] Exhibit 2, Joint Hearing Book, S4, pages 424-427.
[17] Exhibit 2, Joint Hearing Book, S4, page 429.
On 24 November 2016, the Veteran saw Dr Patten. Dr Patten reported that he saw the Veteran for review and stated:[18]
What I do know of his life at the moment is that his depression and pain is being managed by medication you are prescribing to him. He has a planned redundancy from his managerial position at a telecommunications company in mid-December this year. I believe he has a permanent impairment that is assessable and I will help him with his paperwork.
I hope that he would have better function than he states he has with his right knee replacement. … A lot of his pain has been improved with the replacement but I hope for better function. We have had a discussion about this and at this stage I feel that he still wants to go ahead with his planned joint replacement in January.
He was adamant that the relief of pain has been quite satisfying and at this stage he wants to proceed.
[18] Exhibit 2, Joint Hearing Book, S4, page 430.
On 16 December 2016, under the Voluntary Retrenchment Program 2016, the Veteran’s employment at Ergon Energy was terminated.[19]
[19] Exhibit 2, Joint Hearing Book, S1, pages 140-141, Records of Ergon Energy.
On 5 January 2017, the Veteran underwent a left knee replacement by Dr Patten who provided an operative diagnosis of “left knee osteoarthrosis”.[20]
[20] Exhibit 2, Joint Hearing Book, S4, pages 431-434, Records of Dr Andrew Patten.
On 16 May 2017, the Veteran commenced employment at RCS Telecommunications as a full time Account Manager, working 40 hours per week.[21]
[21] Exhibit 2, Joint Hearing Book, S2, page 166, Records of RCS Telecommunications.
On 25 September 2017, the Veteran resigned from his role at RCS Telecommunications providing that his reason for doing so was ongoing health issues he had with his knees.[22]
[22] Exhibit 2, Joint Hearing Book, S2, page 168, Records of RCS Telecommunications.
In response to his resignation, by reply email, RCS Telecommunications stated:[23]
Thanks [Veteran],
As discussed I fully understand the scenario with your knees. Thank you for your contribution to RCST over the past months, we really appreciate your professionalism and commitment to RCST and our customers.
You will be missed.
I appreciate your offer to potentially be of assistance in a part-time capacity or work from home scenario. Over the next few weeks we will consider this and come back to you more formally.
[23] Exhibit 2, Joint Hearing Book, S3, page 168, Records of Ferny Fair Medical Clinic.
The Veteran’s last work day with RCS Telecommunications was 27 October 2017.[24]
[24] Exhibit 2, Joint Hearing Book, S3, page 168, Records of Ferny Fair Medical Clinic.
On 9 October 2017, Mr Bruce Kirchner, Chief Executive Officer, RCS Telecommunications provided a letter to the following effect:[25]
[The Veteran] has tended his resignation from RCS Telecommunications with effect
[25] Exhibit 1, T Documents, T8, page 62, Letter from Mr Bruce Kirchner, RECS Telecommunications.
27th October 2017 due to ongoing issues with his health. The issue relates to the continual and severe pain he experiences in his knees and the difficulty this causes him to perform his duties.
On 31 October 2017, Dr Ellis as the Veteran’s treating general practitioner completed a certificate for compensation stating that the Veteran was indefinitely unfit for work as a result of osteoarthritis of both knees and bilateral knee joint replacements.[26]
[26] Exhibit 1, T Documents, T9, page 63, Medical Certificate: Dr Ellis.
On 7 November 2017, the Veteran saw Dr Patten and complained of some pain around his knee replacements. On 13 November 2017, Dr Patten reported back to Dr Ellis in relation to that appointment as follows:[27]
He looks quite dishevelled and down in his spirits reviewing him today. His appearance certainly is that of a different person. Ten days ago he applied for impairment assessment and pension. He did mention that he had tried to return to work but found he couldn’t because of narcotic induced drowsiness, When he wasn’t working his knee pain was more manageable. Clinically he has full extension at either knee and I am happy with his knee alignments which are symmetrical and in symmetrical valgus. ….Thus, some of his movement gained after his left knee replacement, despite a long period of rehabilitation has been lost. He has essentially tracking patella and his knees are well balanced. I see no convincing clinical evidence that we are dealing with any instability.
…
I also thought he looked quite depressed which may been an extremely important development to explain some of his current problems.
[27] Exhibit 2, Joint Hearing Book, S4, pages 437-438, Records of Dr Andrew Patten.
On 14 November 2017, the Veteran underwent an MRI of his lumbar spine in the context of his knee pain. The MRI report provided:[28]
Findings:
There is minor loss of height and hydration in the lower lumbar discs, and a small annular tear in L4/5, but no other major abnormality. The canal is capacious, and the appearances of the distal cord and nerve roots are normal. No impingement is identified. Vertebral height and alignment is normal. There is no evidence of infection or malignancy.
Impression:
Essentially normal MR of the lumbar spine. Cause for knee pain is not identified.
[28] Exhibit 2, Joint Hearing Book, S7, page 488, Records of Dr Dale Rimmington.
On 22 November 2017, Dr Patten reported to Dr Ellis the findings from further tests he had referred the Veteran to undertake. Dr Patten provided:[29]
An MRI excludes any source of possible spinal pathology to explain bilateral leg pain. A CT Pert protocol demonstrates that all these components are in satisfactory alignment and position with appropriate size. They also demonstrate a centrally tracking patellofemoral mechanism. There is no warmth or swelling at either knee.
On the basis of the above, I can’t foresee that any further surgery would be of benefit to him.
It was quite a shock to see him at last visit and he was quite dishevelled. He was unshaven and appeared tired and drowsy, and in my liking, was depressed. This is a single most significant prognostic factor for poor outcome following joint replacement surgery. I think assessment of his mental state and management of any depression that he has is essential to see if this, with more time, helps pain at his replaced knee settle. Physiotherapy seemed to aggravate his pain, so after 9 months of physical therapy, I don’t think any further physical therapy is likely to help him.
…
I think it’s time to consider bringing forward his impairment assessment to see if we can remove him from the workforce. Less functional demand may lead to symptom reduction.
[29] Exhibit 2, Joint Hearing Book, S4, pages 439-440, Records of Dr Andrew Patten.
On 20 February 2018, the Veteran saw his general practitioner regarding bilateral carpal tunnel and ulnar nerve compression[30] and was referred to Dr Trevor Gervais, orthopaedic surgeon.[31]
[30] Exhibit 2, Joint Hearing Book, S3, page 209, Records of Ferny Fair Medical Clinic.
[31] Exhibit 2, Joint Hearing Book, S3, page 209-210, Records of Ferny Fair Medical Clinic.
On 14 March 2018, the Veteran saw Dr Gervais who referred him for x-rays and nerve conduction studies.[32]
[32] Exhibit 2, Joint Hearing Book, S5, pages 445 and 447-448, Records of Dr Trevor Gervais.
On 22 March 2018, the Veteran lodged a claim for disability pension for “left knee chondromalacia patella”, “bilateral osteoarthritis of the knees” and “aggravation of multiple enthesopathies”.[33]
[33] Exhibit 1, T Documents, T13, pages 76-86, Claim for Disability Pension (received 01.05.2018).
On 1 March 2018 and 12 March 2018, the Veteran saw Dr Ellis regarding his ongoing knee pain and was referred to Dr Richard Pendleton, pain specialist.[34]
[34] Exhibit 2, Joint Hearing Book, S3, pages 209-210, Records of Ferny Fair Medical Clinic.
On 18 April 2018, the Veteran saw Dr Pendleton who adjusted his medication and commented that “his mood seems to be quite buoyant at the moment”.[35]
[35] Exhibit 2, Joint Hearing Book, S6, pages 480-481, Records of Dr Richard Pendleton.
On 2 May 2018, having undergone the recommended tests, [36] the Veteran saw Dr Gervais who sent him for ultrasound guided bilateral carpal tunnel steroid injections.[37] Dr Gervais provided:[38]
He has bilateral carpal tunnel symptoms. He has had nerve conduction studies that have confirmed moderately severe median nerve compression at the wrist level. He also has bilateral cubical tunnel syndrome.
[36]    Exhibit 2, Joint Hearing Book, S5, pages 446 and 449-450, Records of Dr Trevor Gervais.
[37]    Exhibit 2, Joint Hearing Book, S5, pages 451-454, Records of Dr Trevor Gervais.
[38]    Exhibit 2, Joint Hearing Book, S5, page 452, Records of Dr Trevor Gervais.
On 16 May 2018, the Veteran saw Dr Pendleton who further adjusted his medication and requested he come in for “pulsed neuromodulation of L3 DRG bilaterally to help any neuropathic component to his persistent knee pain”.[39]
[39] Exhibit 2, Joint Hearing Book, S6, page 479, Records of Dr Richard Pendleton.
On 17 June 2018, Dr Ellis completed an Impairment Assessment[40] and outlined that the Veteran left the workforce because of incapacitating pain in both knees on walking, sitting and standing and had nil ability to work at present or in the future.[41] Dr Ellis concluded by stating:[42]
I think it is fairly obvious that [the Veteran] has genuine long term disability and as such he will remain unable to work in any capacity and rehabilitation is not appropriate.
[40]    Exhibit 1, T Documents, T18, pages 99-115, Impairment assessment, diagnostic assessments and risk factor assessments: Dr Ellis.
[41]    Exhibit 1, T Documents, T18, pages 113-114, Impairment assessment, diagnostic assessments and risk factor assessments: Dr Ellis.
[42]    Exhibit 1, T Documents, T18, page 115, Impairment assessment, diagnostic assessments and risk factor assessments: Dr Ellis.
On 10 July 2018, the Veteran saw Dr Pendleton who further adjusted his medication and reported that his knee pain did not respond well to the neuromodulation. Dr Pendleton reported that “there may be a role for spinal cord stimulation if there is neuropathic post surgical element to his pain which is hard to be sure of”.[43]
[43] Exhibit 2, Joint Hearing Book, S6, page 478, Records of Dr Richard Pendleton.
On 30 July 2018, the Veteran underwent a right carpal tunnel and cubital tunnel decompression procedure under Dr Gervais.[44]
[44] Exhibit 2, Joint Hearing Book, S5, pages 455-460, Records of Dr Trevor Gervais.
On 12 November 2018, the Veteran underwent a left carpal tunnel release procedure under Dr Gervais.[45]
[45] Exhibit 2, Joint Hearing Book, S5, pages 464-468, Records of Dr Trevor Gervais.
On 13 December 2018, the Veteran saw Dr Ellis and was referred to Dr Dale Rimmington, orthopaedic surgeon for a second opinion in relation to his ongoing bilateral knee pain.[46]
[46] Exhibit 2, Joint Hearing Book, S3, page 215, Records of Ferny Fair Medical Clinic.
On 31 January 2019, the Veteran saw Dr Rimmington who reported that he had ongoing pain despite good functioning and well positioned knee replacements. Dr Rimmington stated that he did not think there was a role for any specific treatment or further investigations at that stage.[47] Dr Rimmington noted that the Veteran had chronic back problems and there was contemplation of a spinal cord stimulator for which he was under the care of Dr Pendleton.[48]
[47] Exhibit 2, Joint Hearing Book, S7, page 490, Records of Dr Dale Rimmington.
[48] Exhibit 2, Joint Hearing Book, S7, page 489, Records of Dr Dale Rimmington.
On 15 January 2019, the Veteran saw Dr Pendleton who reported that his pain had become worse over the previous few months. Dr Pendleton reported that he had booked he Veteran in to trial high frequency dorsal column stimulation.[49]
[49] Exhibit 2, Joint Hearing Book, S6, page 477, Records of Dr Richard Pendleton.
On 12 February 2019, Dr Pendleton reported:[50]
[The Veteran] reports a significant improvement in his knee pain and overall function during his trial of high-frequency spinal cord stimulation. As an additional bonus he reported complete relief of his persistent back pain, although the knee pain was the main indication. He wishes to proceed with permanent implantation … .
[50] Exhibit 2, Joint Hearing Book, S6, page 483, Records of Dr Richard Pendleton.
On 4 March 2019, the Veteran underwent implantation of a permanent spinal cord stimulator under Dr Pendleton.[51]
[51] Exhibit 2, Joint Hearing Book, S3, pages 354-355, Records of Ferny Fair Medical Clinic.
On 13 March 2019, the Veteran saw Dr Gervais who reported:[52]
[The Veteran] came back to see me again today. He had a left carpal tunnel and cubital tunnel decompression in November 2018.
His paraesthesia has settled, but he continues to have some ongoing pain in his hands. His xrays have shown some degenerative changes int the radiocarpal joint and also at the base of the thumb region.
These changes are not severe enough to warrant any surgical intervention. He has widespread pain in other joints and has also recently had a spinal nerve stimulator implanted to help with his leg pain.
There is nothing to be done from a surgical point of view for his hands at present. I am happy to see [the Veteran] again at any stage if his symptoms deteriorate.
[52] Exhibit 2, Joint Hearing Book, S5, page 470, Records of Dr Trevor Gervais.
On 18 February 2019, Dr Rimmington completed an Impairment Assessment[53] and indicated that the Veteran was capable of working in a full-time job commensurate with his age, skill set, and experience, without any need for restriction of usual work practices.

Dr Rimmington also indicated that the Veteran needs a light job or office job.[54]
[53] Exhibit 2, Joint Hearing Book, S7, pages 495-509, Records of Dr Dale Rimmington.
[54] Exhibit 2, Joint Hearing Book, S7, page 507, Records of Dr Dale Rimmington.

On 28 March 2019, Dr Ellis provided a letter certifying that the Veteran:[55]
…has had bilateral knee joint replacements. He has continuing disabling pain that has prevented his return to work. This process is ongoing and permanent.
[55] Exhibit 1, T Documents, T26, page 158, Report: Dr Ellis.
On 30 May 2019, Dr Rimmington provided a letter outlining:[56]
This is a short note to say that I have examined [the Veteran’s] bilateral knee replacement. He reports ongoing high levels of pain despite a relatively normal examination of his knees and no obvious problems identified on post-operative imaging. I think there is a significant chance that his pain will be permanent and a small chance of improvement with time.
[56] Exhibit 1, T Documents, T27, page 159, Report Dr Rimmington.
On 4 June 2019, Dr Rimmington completed an incapacity assessment[57] and opined that the Veteran would be able to do full hours in an office, clerical or light physical but not heavy manual work and that his knees would be fine for such work.[58] Dr Rimmington reported that the Veteran’s knees examine well and that the cause of his pain was unknown.

Dr Rimmington stated that he had just seen the Veteran as a second opinion, that he was not his surgeon and that he has seen a pain specialist.[59]
[57]    Exhibit 1, T Documents, T29, pages 162-164, Incapacity assessment: Dr Rimmington.
[58]    Exhibit 1, T Documents, T29, page 163, Incapacity assessment: Dr Rimmington.
[59]    Exhibit 1, T Documents, T29, page 164, Incapacity assessment: Dr Rimmington.
On 5 July 2019, the Respondent issued a determination accepting the Veteran’s claim for “osteoarthritis left and right knee” and increased his rate of pension to 100% of the General Rate with effect from 1 February 2018.[60]
[60] Exhibit 1, T Documents, T30, pages 165-174, Determination.
On 17 July 2019, the Veteran requested reconsideration of the determination.[61] The Veteran listed the following grounds for appeal:[62]
I am unable to work for 8hrS per week. I am presently doing voluntary work for 3 hrs per week and I have difficulty carrying out those duties.
[61] Exhibit 1, T Documents, T31, 175-177, Veteran’s request for review.
[62] Exhibit 1, T Documents, T31, page 177, Veteran’s request for review.
On 7 September 2019, while on holiday in Thailand, the Veteran had a heart attack and was admitted to Bangkok Hospital.[63]
[63] Exhibit 2, Joint Hearing Book, S8, page 520 and 523, Records of Dr Alex Roati.
On 16 September 2019, the Veteran saw Dr Ellis who referred him to see Dr Alex Roati, cardiologist.[64]
[64] Exhibit 2, Joint Hearing Book, S3, page 222, Records of Ferny Fair Medical Clinic.
On 3 October 2019, the Veteran saw Dr Roati. Dr Roati considered that the Veteran’s mild upper left sided chest discomfort was likely to be musculoskeletal in nature.[65] Dr Roati outlined that the Veteran’s current issues were:[66]
[65]    Exhibit 2, Joint Hearing Book, S8, page 524, Records of Dr Alex Roati.
[66]    Exhibit 2, Joint Hearing Book, S8 page 523, Records of Dr Alex Roati.
1.     NSTEMI 07/09/2019 (whilst on holidays in Thailand):
a.     admitted Bangkok Hospital 07/09/2019. Elevated troponin on admission. No acute ECG changes
b.     coronary angiography 07/09/2019 with subsequent DES to severe 95% proximal posterolateral branch (large vessel). Bifurcating LAD system with mild-moderate diffuse disease. Minor circumflex plaques
c.     satisfactory baseline echo - preserved left ventricular systolic function. No regional wall motion abnormalities
d.    satisfactory progress stress echo 24/09/2019 - no inducible ischaemia, but at a low-moderate cardiac workload
2.     Episodes of atypical left sided chest pain late September 2019 (following stress echo):
a.     admitted The Prince Charles Hospital. Negative serial ECGs and troponins
b.     intermittent atypical chest pains at formal cardiology review 03/10/2019. Plan for conservative management given satisfactory stress echo
3.     Type 2 diabetes
4.     Dyslipidaemia
5.     Ex smoker
6.     Chronic pain syndrome:
a.     chronic back pain with subsequent spinal cord stimulator
b.     chronic knee discomfort (osteoarthritis)
7.     Gastro-oesophageal reflux
8.     Anxiety/depression
9.     Previous normal coronary angiogram September 2008 (St Andrew's Hospital - Dr Malcolm Davison)
On 19 February 2020, the VRB affirmed the Respondent’s determination finding that the Veteran’s correct rate of pension was 100% of the General Rate.[67]
[67] Exhibit 1, T Documents, T32, pages 179-183, VRB Decision.
In February 2020, the Veteran saw Dr Ellis in relation to reflux and gastritis. In April 2020 he was referred for tests and to see Dr Tom Zhou (Gastroenterologist).[68]
[68] Exhibit 2, Joint Hearing Book, S3, pages 224-226, Records of Ferny Fair Medical Clinic.
On 15 April 2020, Dr Pendelton wrote a letter providing:[69]
[The Veteran] was referred to me in May 2018 for help with persistent post-operative pain related to bilateral knee replacements. We pursued a number of different treatment modalities before proceeding with a trial of spinal cord stimulation. [The Veteran] had a positive response to a trial of stimulation and proceeded with permanent implantation in March, 2019.
[The Veteran] continues under my care for multidisciplinary management and optimisation of spinal cord stimulation, as part of his chronic pain management strategy.
To clarify, the spinal cord stimulator was implanted to treat post-operative pain and functional difficulties following his knee replacements.
[69] Exhibit 2, Joint Hearing Book, A2, page 10, Letter of Dr Reichard Pendleton.
On 15 April 2020, Dr Ellis wrote a letter providing:[70]
I have been treating [the Veteran] since 2003 and he had been suffering with bilateral knee pain for a number of years which got to a stage where I referred him to an orthopaedic surgeon to investigate total knee replacements in 2016. He underwent total knee replacements in late 2016 & early 2017 which seemed to be successful. As he worked to reduce his post-operative pain medication a chronic pain condition became evident in both knees which did not abate over time.
[The Veteran] returned to work in May 2017 into a full time, office-based role but had difficulty in remaining at work due to the pain he was experiencing. I saw him on a regular basis between May – October 2017 to assist with his pain management to enable him to continue work, his pain medication was incrementally increased over a time and the increased medication helped to some degree with the pain but generally made him drowsy and forgetful. During this period we discussed his best method of ongoing pain management to enable him to remain at work but it became evident that unless he remained on a high dosage of analgesic which did not eliminate the pain and was impacting him mentally, that his only option was to cease work.
It was my opinion that the best option for [the Veteran’s] ongoing health was to reduce he amount of medication he was taking and to that end recommended he cease work.
I am still seeing [the Veteran] as a patient and still treating his chronic pain. We have investigated his knee replacements further through a 2nd opinion by an orthopaedic surgeon and have placed him under the care of a pain specialist to assist with his on-going pain management.
Addendum
In regards to question 7, the Incapacity Assessment report, that was an issue of interpretation – I thought it was saying I wrongly influenced [the Veteran] into ceasing work. This decision was based on pure medical findings and investigations. As can be seen in the previous questions where my answers clearly showed I regarded his impairment as permanent.
[70] Exhibit 1, T Documents, T34, page 222, VRB Decision.
On 20 April 2020, the Veteran saw Dr Zhou and investigations identified no cause for his epigastric pain.[71] Dr Zhou referred the Veteran to Dr Andrew Hughes, general surgeon.[72]
[71] Exhibit 2, Joint Hearing Book, S9, page 541, Records of Dr Tom Zhou.
[72] Exhibit 2, Joint Hearing Book, S10, page 588, Records of Dr Andrew Hughes.
On 1 June 2020, the Veteran saw Dr Ellis and reported bilateral shoulder pain. He was sent for an ultra-scan.[73]
[73] Exhibit 2, Joint Hearing Book, S3, page 227, Records of Ferny Fair Medical Clinic.
On 23 July 2020, the Veteran saw Dr Susan Woods, general practitioner for pain management review. Dr Woods noted that the Veteran suffers from chronic knee pain despite bilateral knee replacements and also suffers from shoulder pain and rotator cuff pathology.[74]
[74] Exhibit 2, Joint Hearing Book, S3, page 229, Records of Ferny Fair Medical Clinic.
On 2 November 2020, the Veteran saw Dr Ellis who provided a further letter to

Dr Pendleton.[75]
[75] Exhibit 2, Joint Hearing Book, S3, page 231, Records of Ferny Fair Medical Clinic.
In November 2020, the Veteran saw Dr Hughes, who diagnosed epigastric and right chest pain post prandial and asked him to undergo a further ultrasound in the new year.[76]
[76] Exhibit 2, Joint Hearing Book, S10, pages 588-589, Records of Dr Andrew Hughes.
On 9 December 2020, the Veteran saw Dr Roati who reported his current issues to be “non exertional episodes of upper abdominal and right sided chest discomfort.” No cardiac cause was identified.[77]
[77] Exhibit 2, Joint Hearing Book, S8, pages 520-522, Records of Dr Alex Roati.
On 21 December 2020, the Veteran applied to the Tribunal for review of the VRB decision.[78]
[78] Exhibit 1, T Documents, T2, pages 3-5, Application for Review.
On 27 January 2021, Dr Hughes reported that the Veteran under went further investigations and medical imaging which found “quite terrific pan colonic diverticular disease, particularly on the right side with calcified diverticulae”.[79]
[79] Exhibit 2, Joint Hearing Book, S10 page 584, Records of Dr Andrew Hughes.
On 17 February 2021, the Veteran made an Application for an Extension of Time to Lodge an Application for Review of a Decision. The Respondent did not oppose the granting of an extension of time. Subsequently, on 5 March 2021, the Tribunal granted the Veteran’s application for an Extension of Time to Lodge an Application for Review of a Decision.
On 21 April 2021, the Veteran saw Dr Gervais in relation to pain in both his shoulders.

Dr Gervais reported to Dr Ellis:[80]
At this stage, he is complaining of pain in both his shoulders. The left side is more troublesome. He had an episode of quite severe pain in the left should a few months back.
He had ultrasounds scans of both shoulders at QScan in December 2020. This revealed bilateral subacromial bursitis. There is an area of calcific tendinopathy in the left supraspinatus tendon but no rotator cuff tendon tear.
I had some further xrays of the shoulders performed today. He has degenerative changes in the glenohumeral joint but overall, the outline of the joint surface is not too bad. He has degenerative change in the acromioclavicular point. The most obvious abnormality is an area of calcification at the region of the supraspinatus insertion on the left side.
At present, he is able to move his shoulder reasonably freely and the calcific tendinopathy appears to have subsided… .
At this stage, [the Veteran] is not bad enough to warrant any surgical intervention.
[80] Exhibit 2, Joint Hearing Book, S5, page 472-472, Records of Dr Trevor Gervais.
On 21 May 2021, the Veteran, under Dr Hughes underwent a diagnostic laparoscopy and division of adhesions. The procedure found chronic cholecystitis of the gallbladder, secondary to an appendectomy in 2008.[81] Following this procedure, the Veteran’s symptoms improved markedly.[82]
[81] Exhibit 2, Joint Hearing Book, S10, page 554, Records of Dr Andrew Hughes.
[82] Exhibit 2, Joint Hearing Book, S10, page 552, Records of Dr Andrew Hughes.
During the Tribunal process the parties sought and filed independent medical evaluation reports from Dr Chris Cunneen OAM, occupational & environmental physician and

Dr Simon Journeaux, consultant orthopaedic surgeon. Both Dr Cunneen and Dr Journeaux gave evidence at the Hearing and their written reports are outlined below together with their oral evidence.
The Veteran has the following conditions accepted under the VEA:[83]
(a)Osteoarthritis of the left and right knees;
(b)Sensorineural hearing loss of the left ear;
(c)Bilateral tinnitus; and
(d)Bilateral wrist strains.
[83] Exhibit 2, Joint Hearing Book, R8, page 72, Respondent’s Statement of Issues, Facts and Contentions, paragraph 3.44.
The Veteran has the following non-accepted conditions under the VEA:[84]
(e)Left knee chondromalacia patella;
(f)Enthesopathy, unspecified; and
(g)Sensorineural hearing loss of the right ear.
[84] Exhibit 2, Joint Hearing Book, R8, page 72, Respondent’s Statement of Issues, Facts and Contentions, paragraph 3.45.
The Veteran also has the following conditions accepted under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (DRCA):[85]
(a)Bilateral wrist sprains;
(b)Aggravation of multiple enthesopathies;
(c)Bilateral osteoarthritis of the knees; and
(d)Left knee chondromalacia patella.
[85] Exhibit 2, Joint Hearing Book, R8, pages 72-73, Respondent’s Statement of Issues, Facts and Contentions, paragraph 3.46.
LEGISLATIVE OVERVIEW
Part 2 of the Veterans’ Entitlement Act 1986 (Cth) (the Act) deals with pensions, other than service pensions, for veterans and their dependants. Section 14 of the Act allows a veteran to make a claim for a pension.
Section 19 of the Act sets out the way in which a claim for pension is to be determined. For present purposes section 19(5B) of the Act directs that an assessment of such an application must be made in accordance with whichever of sections 22 (general rate of pension), section 23 (intermediate rate of pension) or section 24 (special rate of pension) apply.
The Veteran in this matter made a claim in respect of incapacity caused by the claimed conditions. As a result of the Respondent’s accepting the Veteran’s incapacity in relation to osteoarthritis of the left and right knee, his rate of pension was reassessed. The Veteran seeks to be paid the pension at the Special Rate.
The Tribunal notes that while there was mention of the Intermediate Rate pension pursuant to section 23 of the Act in the material before it, the issue was not directly expanded upon by the Veteran. The Respondent, however contended that it is appropriate to consider the applicability of both the Intermediate and Special Rate of pension in accordance with the decision of the Full Federal Court in Smith v Repatriation Commission (2014) 220 FCR 452 at [57] and [71].[86]
[86] Exhibit 2, Joint Hearing Book, R8, page 73, Respondent’s Statement of Issues, Facts and Contentions, R8, paragraph 5.1.
Given the Tribunal’s findings set out below the Tribunal has not been required to consider section 23 of the Act as it does not apply where section 24 of the Act is found to have applied.[87] As such the Tribunal has not reproduced the Respondent’s contentions in regard to section 23 of the Act.
[87] See section 23(1)(d) of the Act.
In determining an application for an increase in the rate of pension, a veteran’s entitlement is determined in respect of any circumstance within the “assessment period”. The assessment period starts on the day the application for an increase in the pension was received until the date of the decision of the Tribunal.[88]
[88] See section 19(9) of the Act; Richmond v Repatriation Commission [2014] FCA 272 at [107].
Section 24 of the Act deals with entitlement to the special rate pension and relevantly sets out:
Special rate of pension
(1)      This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a)      either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-causeddisease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)       section 25 does not apply to the veteran.
(2)   For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
(2A)   This section applies to a veteran if:
(a) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(b) the veteran had turned 65 before the claim or application was made; and
(c)       paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d) the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work ( last paid work ) that the veteran was last undertaking before he or she made the claim or application; and
(e) because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f) the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g) when the veteran stopped undertaking his or her last paid work, the veteran had been undertaking remunerative work for a continuous period of at least 10 years that began before the veteran turned 65; and
(h)       section 25 does not apply to the veteran.
Section 28 of the Act provides that in determining for the purposes of section 24(1)(b) of the Act, whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work regard must be had to the following matters only:
(a)     the vocational, trade and professional skills, qualifications and experience of     the veteran;
(b)     the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)      the degree to which the physical or mental impairment of the veteran as a    result of the injury or disease, or both, has reduced his or her capacity to     undertake the kinds of remunerative work referred to in paragraph (b).

Section 5Q of the Act defines “remunerative work” to include “any remunerative activity”.
The Full Federal Court in Banovich v Repatriation Commission [1986] FCA 397 at [23] held that the phrase “remunerative work which the member was undertaking” in the Repatriation Act 1920 (Cth) “should be read as a reference to the type of work which the member previously undertook and not to any particular job.”
In Smith v Repatriation Commission [2014] FCAFC 53 at [40] (Smith), Buchanan J summarised the legislative scheme:
The effect of these statutory directions in the present case was that an assessment was required as to whether at any time during the “assessment period” a pension was payable in accordance with s 23 (intermediate rate) or s 24 (special rate). If so, the most recent such entitlement was to be determined as the rate of pension payable. The assessment period commences on the date an application is made and concludes when the decision is made. This means that the entitlement of the veteran is not to be judged only at the time that the application is made. The position must be assessed by reference to any relevant circumstance which occurs up to the time of decision. The entitlement may increase or decrease during that period, but provided that a pension was payable at some time during the assessment period a veteran will receive either the intermediate rate or the special rate, whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable. Because this arrangement applies to applications for increase in pension, it commences from the premise that some level of pension at the general rate is already being paid.
[Emphasis added]
Further in Smith, Buchanan J considered section 24 of the Act carefully, providing the following observations:[89]
47 Section 24(1)(b) and (c), when read together, state a composite test containing a series of conditions. First, s 24(1)(b) requires that a veteran be rendered, by the war-related incapacity alone, incapable of working more than eight hours per week. Secondly, s 24(1)(c) requires that the veteran be prevented, by that incapacity alone (i.e. not for other reasons) from continuing earlier remunerative work. Thirdly, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of the loss of earnings. Fourth, s 24(1)(c) requires that the loss of earnings would not be suffered but for the incapacity.
48 The operation of s 24(1)(c) is capable of being informed by the provisions of s 24(2). The overall effect of s 24(1)(c) may be summarised as one which requires a demonstrated loss of earnings as the direct result of the war-related incapacity, and only for that reason. Section 24(2)(a) supplements the requirements of s 24(1)(c) by identifying specific circumstances which will cause it not to be satisfied. Those circumstances, in effect, state the opposite to the conditions in s 24(1)(c) itself. Thus, there is no established loss of earnings by reason of the incapacity if remunerative work was ceased for other reasons (s 24(2)(a)(i)), or if the veteran is also incapacitated or prevented from doing remunerative work for some other reason (s 24(2)(a)(ii)). In this assessment, of course, it continues to be accepted that the veteran is actually incapacitated in any event (“a veteran who is incapacitated…”). The purpose of the enquiry is to see whether, nevertheless, there are other explanations for economic loss so that the incapacity is not the only reason for it.
49 Section 24(2)(b) provides some relief from the potentially harsh consequences of this arrangement. It applies where remunerative work is not being done. In my view, it accommodates a cessation of earlier remunerative work, as well as a circumstance where a veteran has not worked since injury, or since the development of the incapacity. In all those circumstances, in my view, a veteran may demonstrate genuine efforts to obtain work which are made fruitless by the incapacity. That is, the efforts would continue but for the incapacity and the incapacity is the substantial cause of the inability to obtain work. Those circumstances are taken to satisfy the basic test in s 24(1)(c) of being actually prevented by the incapacity from continuing remunerative work. Economic loss (i.e. loss of the opportunity for economic gain by way of income) follows naturally enough from this scenario. The search is for remunerative work. The economic consequence of failure to obtain it is the result of the incapacity.
(emphasis in the original)
[89] Smith v Repatriation Commission [2014] FCAFC 53 at [47]-[49].
The Full Federal Court, in Repatriation Commission v Hendy[90] said:
The language of s 24(1)(c) of the Act directs attention to the question of whether incapacity from the relevant condition alone prevents a veteran from continuing to undertake remunerative work. The provision does not contemplate that other factors are only to be taken into account if they, of themselves, prevent the Veteran from working. The decision-maker is required to take into account any factor that plays a part or contributes to a veteran’s being prevented from continuing to engage in remunerative work. If a period of time elapses after a veteran ceases remunerative work and before the commencement of the assessment period, lack of recent work experience, time out of the workforce and increasing age will be relevant for consideration under s 24(1)(c) of the Act. The decision-maker is required to consider the effect, contribution to, and relative weight to be attached to any or all of those factors during the assessment period. So long as the Tribunal performs this exercise, the conclusions drawn from the assignment of the relative impact the various factors on the ability of the veteran to continue in remunerative work is not reviewable, except in exceptional circumstances. Moreover, having considered any or all of the factors which may have contributed to a veteran's incapacity, the Tribunal is then required to determine whether it is the veteran's war-caused injury or war-caused disease, or both, alone which prevent the veteran from continuing to undertake remunerative work. …….
[90] Repatriation Commission v Hendy [2002] FCAFC 424 at [37]; (2002) 76 ALD 47, 54 at [36].
Section 120 of the Act deals with the standard of proof required. Section 120(4) of the Act requires that a veteran’s entitlement to an increased pension be decided on the decision-maker’s reasonable satisfaction.[91] Section 120(6) of the Act provides that no onus of proof is imposed on either party.
[91] Repatriation Commission v Smith (1987) 15 FCR 327 at [161].
Section 177 of the Act sets out the dates of effect of decisions made by the Tribunal.
ISSUES
The issue before the Tribunal is whether the Applicant is eligible for payment of the pension at the Special Rate. This requires determining:
(a)What is the assessment period?
(b)Whether the Veteran:
(i)made a valid application under section 14 of the Act for an increase in the rate of pension that he was receiving (section 24(1)(aa) of the Act);
(ii)had not yet turned 65 when the application was made (section 24(1)(aab) of the Act); and
(iii)was being paid the disability pension at a rate equal to or greater than 70% of the General rate of pension (section 24(1)(a)(i) of the Act).
(c)If the answer to (b) is yes, whether the Veteran is totally and permanently incapacitated, that is unable to work more than eight hours a week, due to service-caused incapacity alone (section 24(1)(b) of the Act); and
(d)If the answer to (c) is yes, whether the Veteran by reason of incapacity from his service-caused conditions, alone, is prevented from continuing to undertake remunerative work that he was undertaking; and
(e)If the answer to (d) is yes, whether the Veteran, by reason of being prevented from continuing to undertake remunerative work, suffered a loss of salary or wages, or of earnings, that he would not be suffering if he was free of that incapacity.
(f)If the answer to (e) is yes, from what date should the Veteran be paid the pension at the Special Rate?
EVIDENCE
Applicant’s Evidence
The Veteran provided a statement dated 11 June 2021 outlining his work history since 2003 and how the chronic pain in his knees had affected him. The Veteran stated that when he was offered a voluntary redundancy in late 2016 he saw it as an opportunity to have the knee replacement surgery and to have a reasonable time for recovery before seeking new employment. The Veteran stated:[92]
… The left knee was replaced in August 2016 and the right knee in January 2017. I completed rehabilitation in both hospital and with local providers to assist with recovery.
In May 2017 I was offered the role of Account Executive with RCS Telecommunication to manage a number of their major customers. The role was mainly sedentary with some commuting to local and regional customer sites. I was still taking a strong pain medication when I commenced the role with the expectation that this would reduce over time.
However, I found that rather than abate, the pain levels slowly increased. The level of pain was at its best in the morning after a night of lying down, but steadily increased throughout the day due to physical activity and/or sitting down for periods of time. This pain reached levels that were quite debilitating. To manage the pain my medication dosages were steadily increased to try and find a dosage that enabled me to work with an acceptable level of pain. The problem was that the dosage needed to get to an acceptable level of pain where I could work comfortably would make me groggy, very tired, agitated and prone to mistakes.
Given the impacts of the medication on my health, my family and the possibility of creating significant impacts on RCS’s customers and business I discussed with my GP what else could be done to manage my pain. After much discussion with my GP, ceasing work appeared to be the best/only way to be able to reduce my medication, manage my pain levels and improve my life outcomes. As a result of these discussions I gave notice to RCS and ceased work in October 2017.
[92] Exhibit 2, Joint Hearing Book, A1, page 2, Statement of Veteran.
The Veteran also provided a statement titled ‘Additional Note regarding T Documents, Page T29 – Workability’:[93]
I sought a consultation in late 2018/early 2019 with Dr Rimmington to get a second opinion of the outcomes of my bilateral knee replacements due to the continual chronic pain in both knees. From examination he confirmed that the surgery on both knees appeared to be successful. I discussed my pain issues with him and he advised there was no obvious cause of the pain but it would most likely persist, see attached letter.
Responding to your request for information from Dr Rimmington in May 2019 he stated “that I would be OK to work full time hours”. After reading his report I spoke to him regarding about how he considered me fit for full time work when I suffered from chronic pain in both knees. He advised me that “pain was not taken into account when he considered the permanent impairment” as he assessed me against the Queensland Guidelines for Permanent Impairment. The guide states that impairment should be based on the underlying condition only and that pain is not considered in the assessment.
[93] Exhibit 2, Joint Hearing Book, A1, page 3, Statement of Veteran.
At the Hearing, the Veteran gave evidence under oath and in the Tribunal’s view gave open and honest responses to the questions asked of him.
On cross-examination, the Veteran:[94]
[94] Transcript, pages 5-7.
·When his attention was drawn to Dr Patten reporting that he was depressed and asked if it was fair to say that he was having a difficult time in terms of his mental health at that time, said, “I don’t believe so, I was still, I was having pain, my mindset was that it was something that was just wrong that could be addressed, and I went back to Dr Patten and said, you know, what’s the issue? The only thing that he offered me was depression.”
·Confirmed that he had been a patient of the Ferny Fair Medical Centre from at least 2011.
·When put to him that there is reference in the records of that medical centre to a history of taking anti-depressant medication since 2011 and asked if that is the medication he was still on, said, he was taking some depressive medication at the present time.
·When asked if there had been periods where he ceased taking that medication and started it again or if he had been on it continuously since 2011, said he could not remember.
·Confirmed that his knee pain was ongoing despite the knee replacement surgeries and because of that he had been referred to Dr Pendleton as a pain specialist.
·Confirmed that in February 2019, Dr Pendleton arranged for him to have a trial of a high frequency spinal cord stimulation.
·Said that the high frequency spinal cord stimulation provided some relief of his knee pain but the benefit waned over time.
·When asked about the reference by Dr Pendleton that incidentally, the stimulator provided relief of his back pain, said, yes, but that was not why it was put in.
·Confirmed that in March 2019, he underwent implantation of a permanent spinal cord stimulator.
·When asked about reference in the material to his history of chronic back pain and when it began, said, “Look, in the army I had some but, you know, it was something that was managed through fitness and exercise, that sort of stuff.”
·
Confirmed that he had a heart attack in September 2019 while on holidays in Thailand that was treated with a stent and that when he returned home he saw

Dr Roati.
·Said that he did not have any ongoing symptoms from the heart attack after the stent procedure, however he had been back to see Dr Roati, in around March this year. Dr Roati conducted an angiogram because he was having some chest pain which he did not think was heart related, however there was a small blockage or constriction in one of the vessels and another stent was inserted.
·Said he presently has no ongoing heart symptoms.
·Confirmed that in April 2020, he saw Dr Zhou a gastroenterologist for epigastric pain and that as no cause was identified he was referred to Dr Hughes a general surgeon for a second opinion.
·Confirmed the treatment he received in May 2021 and said that his gastric pain is still present. Said he was not aware of the issue about the adhesions, et cetera, and Dr Hughes removed his gall bladder as a possible causes of the pain, however it did not resolve the issue.
·When asked about how long the shoulder pain from rotator cuff pathology that he reported to his GP in July 2020 had been going on for, said, a considerable period of time and that there was no particular identifiable injury.
·Confirmed that he underwent treatment for his bilateral shoulder condition in December 2020 and saw Dr Gervais in April 2021 and had further imaging at that time.
In response to questions asked by his advocate, the Veteran[95]
·When asked to explain what Dr Rimmington said to him about his knees, said,
I went to see Dr Rimmington to get a second opinion after I had seen Dr Patten. Because I was unhappy with the depression diagnosis. He explained that he considered the knee replacement was successful mechanically and there was no issue, and I talked to him about the pain. And he said, well he’s not in a position to comment on the pain, but he did state that – slightly, that the pain would be ongoing over time.
… He advised me that he assessed it and I think it was the work place – Queensland work. Work cover assessment which does not include pain as part of the assessment.
[95] Transcript, pages 7-8.
In response to questions asked by the Tribunal, the Veteran:[96]
[96] Transcript, pages 8-12.
·When asked how his back pain affected him, said, it is just in his lower back and it comes up painful at times but through exercise, stretching, massage and those sorts of things it is managed.
·Said that his back pain has not really restricted him in doing anything, it just surfaces every so often.
·Said that his gastric pain had been going on for about three or four years and there had been a number of attempts to isolate it but they have not found anything in particular. It impacts on his eating, it is uncomfortable but not debilitating.
·When asked if Dr Rimmington treated him or adjusted his medication, said:
We went through the normal, you know, what’s your problem, what medications you’re on, all those sort of things. He then did a physical examination of my knees, a fairly comprehensive one. He also reviewed the MRIs and cat scans that Dr Patten had organised the year or so beforehand. So they couldn’t find anything mechanically wrong. And then we discussed the issues, well the pain is the issue, what do we - or how do we address that? And that was where he made the thing that, you know, it’s not really in his realm or - the thing to assess the pain.
·Said he saw Dr Rimmington twice and that he was not responsible for his medication and did not give him any exercises to do or recommendations on what might help him.
·Having been referred to the GP documents showing that he had been prescribed anti-depressants, with the first time being in 2011, confirmed that he took them for depression and that it did not impact upon his ability to work.
·Said he had pain in his wrists and fingers and was losing sensation in the peripheral parts of his fingers for a couple of years prior to 2018 and that it did not affect him being able to type or write or anything, it was just losing control if he wanted to hold a hammer as he did not have the strength or feeling to do that.
·Said that after his bilateral carpel tunnel and nerve compression surgeries in July and November 2018 his recovery time was a couple of months.
·Said that his discomfort has returned and it just limits some activities strength wise in the hands, he can still type and write.
·When asked about his shoulder pain and when it started, said, it had been with him for a considerable period of time, he thinks it stems from playing second row rugby in the Army side.
·When asked if the pain had been around for a long time and he had continued to work whether the pain was intermittent and when did it come up, said:
Depends upon certain activities, things like leaning on my elbow, lifting the arm up far above my head, those sort of things at time would cause difficulty and pain. But again, massage and other sort of general treatments like that would assist, it never stopped me from, sort of, doing anything in particular, I just had to be careful I didn’t do things that would over extend it.
·When asked if his shoulder pain was a pain that comes and goes when he does things or if it is a chronic pain that is there all the time, said, “No, I’m in no pain now, so it’s really activity based.”
·Said that when doing office work and desk work it was not really an issue.
·When asked to expand more about how he was feeling at the time that Dr Patten’s opined that he seemed depressed, said
I’d had the chronic pain from the osteoarthritis for quite a few years and my thing was, well a knee replacement looks like a good outcome, I did a lot of research, I spoke to lots of people. A lot of success. So I was very positive about the outcome, I then went to rehab after each time to get the maximum benefit out of it and my expectation was that, you know, the pain would be there for a period of time, everybody said there would be pain and it would take some time to go away, it’s just that it continued on and I remained on fairly high levels of Targin, I was having trouble reducing that, that’s why I went back to see him, I thought there must be something mechanical or, you know, something trapped or something like that in the knees and that it would be something that could be addressed fairly readily.
·Confirmed that it was his intention that after his knee surgery his pain would be much better and he could continue to work.
·Said the pain in his knees has not gone away.
·When asked how the pain he experiences from his knees was different to the pain he might get from a shoulder or back twinge when he has overdone something, said, there is a constant nagging, aching, pain in the knees.
·Confirmed that because he was not able to continue working he had experienced a financial detriment.
Independent Medical Examinations
Evidence of Dr Chris Cunneen OAM

On 12 July 2022, the Veteran’s advocate sought an independent medical examination and report from Dr Cunneen.[97] Together with the briefing letter, Dr Cunneen was provided copies of the:[98]
·DVA employment questionnaire completed by [the Veteran] dated 26 June 2018.
·Correspondence from Dr D Ellis (treating General Practitioner) dated 28 March 2019 and 15 April 2020.
·Report from Dr D Rimmington dated 30 August 2019.
·Report of Dr R Pendleton (treating Pain Physician) dated 15 April 2020.
·Reports from Dr S Journeaux dated 12 November 2021 and 7 February 2022.
·Referral letter from Mr Ken Cullen dated 12 July 2022.
[97] Exhibit 2, Joint Hearing Book, A3, pages 12-15, Briefing letter to Dr Chris Cunneen.
[98] Exhibit 2, Joint Hearing Book, A4, page 17, Report of Dr Chris Cunneen.
On 19 July 2022, Dr Cunneen examined the Veteran and provided a report[99] in which he provided the following summary:[100]
[99] Exhibit 2, Joint Hearing Book, A4, pages 16-26, Repot of Dr Cunneen.
[100] Exhibit 2, Joint Hearing Book, A4, pages 20-21, Report of Dr Cunneen.
DISCUSSION:
When assessed clinically on 19 July 2022, it was clinically evident [the Veteran] has significant permanent pain symptoms associated with bilateral knees (right side moreso).
CAPACITY FOR WORK:
I would opine this Veteran does not possess sufficient functional capacity to return to any future paid employment in any capacity by virtue of his prior education, training and experience (particularly working as a Senior Accounts Manager or Telecommunication Engineer) permanently on the basis of his bilateral post-operative knee symptoms alone. These post-surgical painful knee joints alone, have rendered [the Veteran] unable to return to any future paid employment on a permanent basis.
To return this Veteran to any future paid employment would be associated with a high risk of future work-related aggravations or exacerbations of his chronic pain states involving his post-surgical knees.
I would opine [the Veteran’s] other multiple medical conditions, whether pertaining to his prior Defence Service or being constitutional in nature, do not impact upon this Veteran’s future capacity to return to any paid employment. I would like to highlight his bilateral shoulder injuries (rotator cuff arthropathy with glenohumeral arthritis) is intermittently painful and does limit activity away from his torso and above shoulder height. However, these degenerative shoulder conditions are not clinically relevant as no impact upon [the Veteran’s] ongoing functional incapacity to return to paid employment/work as future incapacity for all work is solely due to his chronically painful and restricted bilateral knee joints alone.
In my opinion as a serving Defence Member for 3+ decades (Senior Medical Officer within the Australian Army) and a senior Consultant Physician with 4 decades of medical experience, having seen multiple patients and Veterans with a spectrum of knee conditions over the years, [the Veteran] does not possess sufficient functional capacity on the basis of his bilateral chronically painful and stiff knee joints alone, to return to any paid employment. There are no other medical conditions affecting [the Veteran], which impact upon this Veteran’s ongoing incapacity for all future paid employment, certainly not intermittently painful and restricted bilateral shoulders as these joints do not restrict his capacity to work with in a senior managerial or senior engineering role.
I would support [the Veteran’s] application for consideration for the Special Rate Pension, for the following reasons under Section 24 of The Act:
1. The degree of incapacity for the Veteran is 100% as determined by DVA previously during 2019.
2. This Veteran is totally and permanently incapacitated on the basis of his accepted defence injuries (osteoarthritic knees requiring surgery with significant post-operative pain) alone to render this Veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
3. This Veteran is by virtue of his bilateral pain post-surgical knees, is prevented from continuing to undertake remunerative work that he was undertaking before October 2017 and by this reason alone, is suffering the loss of wages and summary, or of earnings on his own account, that the Veteran would not be suffering if [the Veteran] was free of this incapacity.
I would opine [the Veteran] does satisfy Section 24 (1c of The Act) as he satisfies “the Alone test” on the basis of his chronically painful post-surgical knee joints, which are the only medical condition restricting his current and future return to all paid employment.
In relation to questions put to him, Dr Cunneen reported:[101]
[101] Exhibit 2, Joint Hearing Book, A4, page 23, Report of Dr Chris Cunneen.
…
f. The Applicant is suffering from chronic pain in the knees. Is there any other condition that is contributing to his chronic pain?
No.
Special Rate Pension
g. Is the Applicant’s incapacity from his accepted conditions of such a nature as, of itself alone, to render the Applicant incapable of undertaking remunerative work for periods aggregating more than 8 hours per week?
Yes. I have addressed this question in the above section of the report titled “Capacity For Work”.
h. If so, is the Applicant, by reason of incapacity from his accepted conditions alone, prevented from continuing to undertake remunerative work that the Applicant was undertaking?
Yes. Please note this situation is solely due to [the Veteran’s] Defence Service-related bilateral osteoarthritic knee joints requiring bilateral TKR with post-operative chronic joint pain. No other medical conditions, be they accepted from his prior Defence Service or constitutional, prevent this Veteran from continuing to undertake future employment or remunerative work. As stated previously, I would opine [the Veteran] has satisfied the Alone test.
Dr Cunneen gave evidence at the Hearing by telephone under affirmation.[102] In response to questions asked by the Veteran’s advocate, Dr Cunneen:[103]
·Confirmed his name and qualifications and that he is primarily employed as an occupational and environmental physician.
·Confirmed that there was nothing in his report he sought to amend.
[102] Transcript, pages 27-39.
[103] Transcript, pages 27-28.
On cross-examination, Dr Cunneen:[104]
[104] Transcript, pages 28-32 and 38.
·Confirmed that the documents he outlined in his report as having received was the extent of the documentary material he had reviewed.
·When asked why his report did not include a reference to the Veteran’s shoulder condition in the section of his report that outlines his symptoms, said, that he did conduct a clinical examination of the Veteran’s shoulders however it was an oversight as to why that information was not reflected in his report.
·Said he should have put a comment in to say that on the day of examination the Veteran had no complaints or symptoms pertaining to his shoulders.
·Said he had undertaken a full clinical examination of the Veteran’s shoulders and when he asked him about his shoulders he said they were not sore at the time and the history is that it is intermittent and depends upon activity.
·Said that his opinions in his report about the Veteran’s bilateral shoulder conditions are based on his questionnaire of the Veteran at the time before he examined him and his clinical assessment of both shoulders.
·When put to him that there was an inconsistency with what the Veteran reported to Dr Journeaux about his shoulder pain and what he reported to him and that there is a big difference between constant ache and intermittently painful, said, that is true but he can only reflect on what he has read, seen, been told and what he finds. He said that he does not tend to mirror what other people say, he takes on board what they have written but at the end of the day, it is meant to be his assessment.
·Outlined the results of his examination of the Veteran’s shoulders.
·When asked if he was aware that the Veteran had attended his GP for pain management review on 23 July 2020 and at that point reported suffering from shoulder pain from rotator cuff pathology, was referred by his GP in December 2020 for ultrasound and had ultrasound guided steroid injections into both shoulders, said he was not aware of those details.
·When asked if he was aware that the Veteran presented to Dr Gervais in April 2021 with bilateral shoulder pain and had a further x-ray, said, he was aware of that as it was flagged in Dr Journeaux’s report.
·Said he was not here to deny that the Veteran does not have shoulder pathology, so basically, he supposed that the essence of his report is that in the absence of his knee conditions, without pain, he did not believe his other medical conditions be they defence service related or not, would exclude him from returning to work.
·Engaged in the following exchange:
Respondent: Doctor, if I could just, I guess, recap that briefly, so [the Veteran] reported to Dr Journeaux that he suffers from a constant ache in his shoulders, certainly, [the Veteran] reported to you that on a bad day, his shoulder pain is 7 to 8 out of 10. Although on a good day, only 2 out of 10. There’s some restriction in his range of movement, he is reporting pain to his GP, he’s had medical imaging, he’s had steroid - ultrasound guided steroid injections, he’s engaged with an orthopaedic specialist. In light of this evidence, do you agree that it doesn’t have to be the case that [the Veteran’s] shoulder pain was the only condition that stopped him from working but can you say, or do you agree, that it has to be said that the shoulder condition does play at least a part or contributes to his reduced capacity for work?
Dr Cunneen: No, I wouldn’t support that. That may be what other doctors have said but as an occupational and environmental physician, who is not just a surgeon, and I deal with - you know, our expertise is in causation injury management and return to work strategies and I’ve been around the block a few times, seen lots of shoulder, other joints and knee injuries, the overwhelming pain generator for this claimant is his knees and the reason he had a spinal cord stimulator, he takes Targin, I asked him if he takes Targin for his shoulders and he said no, it’s for my knees. So I am not there to cherry pick and deny he hasn’t had shoulder problems but certainly, in my reading of the limited history I had, since most of it is focused on his knees and his knee replacements - his questionnaire that he filled out, a four page questionnaire they fill out on the day, that’s my usual practice, policy practice, and my history that I got from him on the day, my clinical examination, would not confirm that his shoulders are a factor in why he is unable to return to paid employment, be it part time or fulltime.
And certainly in a clinical administrative or clerical role, which is what [the Veteran] has worked primarily over the past 10 years, you know, his last job leaving as a senior accounts manager for RTS Telecommunications, you know, I mean, his use of his shoulders is fairly minimal with his knee and the impact of the medication, that was the critical factor in why he left and I must admit the medical evidence has been presented and certainly, my assessment wouldn’t change my opinion as expressed in my report dated 17 July 2022.
…
Respondent: Doctor, obviously you’ve only, in your brief, been provided with a fairly limited summary, or overview, of the applicant’s medical history, you haven’t been briefed crucially with summonsed medical records or a lot of the detail in T documents which are other material that’s before the tribunal. Do you accept that, in this case, you haven’t been able to obtain a complete picture - a complete picture of the applicant’s medical history and that this may have affected the reliability and accuracy of your report going to the factors which are contributing to the applicant’s reduced capacity for work?
Dr Cunneen: I accept the fact I haven’t had his entire and appropriate medical record. But I would dispute the fact that that has impacted my clinical assessment of his capacity to work moving forward, based on - since I looked at his shoulders, asked him about his shoulders, asked him about his knees, I mean, he’s had other areas as well but mostly I just focused on the two areas, or two limbs that I thought were the most appropriate and which seem to have been the significant ones and basically, I can only reflect on what I’ve found, what I’ve been told and what my assessment was on the day.
·When asked that if the Veteran’s shoulder pain fluctuates on a good and bad day, if he was to return to work would he expect that the frequency of the severe shoulder pain would increase, said:
To answer that, I’d say it depends. It depends upon what type of employment he gets if he returns to work. The history that I’ve got, and certainly from reading the limited reference material, I would give it, and particularly Dr Journeaux’s report, on
17 November last year, which was quite extensive in his other history for this gentleman. And my assessment on the day, is that if he works as in a clerical, administrative, or supervisory role, particularly as a senior manager, he’s not going to use his shoulders, at, or above shoulder height. So therefore his potential to have a work-related aggravation, or exacerbation of his pre-existing biological shoulder pathology, is next to nil.
Evidence of Dr Simon Journeaux
On 20 September 2021, the Respondent sought an independent medical examination and report from Dr Journeaux.[105] Together with the briefing letter, Dr Journeaux was also provided with all of the medical evidence presently entered into evidence before the Tribunal (other than the report of Dr Cunneen).[106]
[105] Exhibit 2, Joint Hearing Book, R2, pages 31-36, Briefing letter to Dr Simon Journeaux.
[106] Exhibit 2, Joint Hearing Book, R2, pages 33-34, Briefing letter to Dr Simon Journeaux.
In a report dated 12 November 2021,[107] Dr Journeaux provided that he had examined the Veteran on 3 November 2021 and had reviewed the material provided to him. As a result, Dr Journeaux provided a report dated 12 November 2021[108] outlining the following opinion in relation to the questions put to him:[109]
[107] Exhibit 2, Joint Hearing Book, R3, pages 37-57, Report of Dr Simon Journeaux.
[108] Exhibit 2, Joint Hearing Book, R3, pages 39-40, Report of Dr Simon Journeaux.
[109] Exhibit 2, Joint Hearing Book, R3, pages 54-57, Report of Dr Simon Journeaux.
3.2 Please outline the Applicant’s work history as reported to you by the Applicant including his vocational, trade and professional skills and qualifications. In your opinion, what kinds of remunerative work might the Applicant reasonably be able to undertake?’
I refer you to my report above. [The Veteran] does have capacity to work in a sedentary role in the type of work that is in his vocational history.
3.3In your opinion, from the Applicant’s reporting and available documentation, which medical conditions contributed to the Applicant ceasing work in 2017? Were there any other factors, reasons or circumstances which contributed to the Applicant’s decision to cease work at that time?
It is my view that [the Veteran] ceased work in 2017 due to chronic pain referable to both knee replacements. It should be noted that he has been on long-term opioid medication since that time which would potentially affect his cognitive capacity.
Diagnosis
3.4     What medical conditions does the Applicant currently suffer from?
[The Veteran] currently suffers from a medical point of view from the following conditions:
(a)     Bilateral shoulder rotator cuff tendinopathy most likely presenting with cuff tear arthropathy which affects the glenohumeral joints causing degeneration.
(b)       Bilateral knee replacements from which he suffers chronic pain.
(c)    Bilateral ulnar and median nerve compression for which he has had successful surgery.
(d)    Other medical conditions noted above which are stable.
3.5What symptoms does the Applicant suffer as a result of his medical conditions as observed on examination, reported to you by the Applicant and contained in the enclosed documentation?
I refer you to my report above.
3.6 How do these symptoms restrict the Applicant?
[The Veteran’s] main restrictions because of the symptoms relate to his mobility which is restricted due to chronic pain in both knee replacements. He has no significant functional incapacity that relates to his shoulders.
Capacity for work
3.7 In your opinion, is the Applicant currently capable of working 8 or more hours per week in the type of employment for which he has the skills, qualifications and experience identified in your response at question 3.2 above? Please give reasons for your answer.
In essence the answer to this question relates to his pain tolerance and motivation to work. It would be my view that he in theory from a physical perspective he has the capacity to work more than eight hours per week. His knee replacements are technically successful, and he does have capacity to mobilise and can travel. Whether this capacity eventuates into reality is dependent on pain tolerance and motivation.
…
3.9 If yes, is the Applicant currently capable of working 20 or more hours per week in remunerative employment?
a.If yes, please give reasons for your answer.
…
It is my view that [the Veteran’s] current symptoms would make it unreasonable for him to work for 20 or more hours a week given his chronic pain. This would affect his concentration and capacity to perform tasks particularly as symptoms are aggravated by weight bearing activity.
It should be noted that [the Veteran] no longer has bilateral knee osteoarthritis and his conditions have actually been subsumed by painful bilateral knee replacements.
It is my view that the other musculoskeletal abnormality or conditions identified would not affect him from working 20 or more hours a week nor would his medical comorbidities.
As I have intimated above, it is the chronic pain which affects his remunerative prospects.
Other factors
3.10 Is there any evidence of non-organic factors and voluntary or involuntary exaggeration of the symptoms or signs? Please explain.
There is no evidence of non-organic factors or voluntary or involuntary exaggeration in respect of his presentation.
On 20 January 2022, the Respondent sought a supplementary report from Dr Journeaux.[110]
[110] Exhibit 2, Joint Hearing Book, R4, pages 58-59, Request for supplementary report to Dr Journeaux.
On 7 February 2023, Dr Journeaux provided a supplementary report outlining the following opinion in relation to the questions put to him:[111]
[111] Exhibit 2, Joint Hearing Book, R5, pages 60-63, Supplementary Report of Dr Journeaux.
2.1 Please list all of the Applicant’s past and current medical conditions, as reported to you by the Applicant and contained in the previously provided documentation (including non-orthopaedic conditions).
•    Bilateral total knee replacements from which he suffers chronic pain.
•    Bilateral carpal tunnel syndrome – operated
•    Bilateral cubital tunnel syndrome – operated
•    Bilateral cuff tear arthropathy with glenohumeral osteoarthritis
•    Laparoscopic cholecystectomy
•    Open appendicectomy.
•    Hypercholesterolaemia
•    2019 – Myocardial infarction treated by a stent, then drugs.
•    GORD.
•    Sensorineural hearing loss of the left ear.
•    Prostatomegaly.
2.2 In your report dated 12 November 2021, you describe the Applicant as suffering from chronic pain. Which of the Applicant’s past and current medical conditions are contributing to his chronic pain?
Bilateral cuff tear arthropathy with glenohumeral osteoarthritis
Right and left knee replacements.
…
Intermediate rate pension
c.Is the Applicant’s incapacity from his accepted conditions of such a nature as, of itself alone, to render the Applicant incapable of undertaking remunerative work for 20 or more hours per week?
Yes.
d.If so, is the Applicant, by reason of incapacity from his accepted conditions alone, prevented from continuing to undertake remunerative work that the Applicant was undertaking?
Yes.
Please identify any such non war-caused factor/s that exists.
Bilateral cuff tear arthropathy with glenohumeral osteoarthritis.

In the Respondent’s Statement of Facts, Issues and Contentions it contended that the Veteran’s non-accepted conditions preclude him from meeting the “alone” test requirements as set out at paragraph 114 above.[150] At the Hearing the Respondent contended that the primary factor that is identified as contributing to the Veteran’s reduced capacity for work is the shoulder condition being the bilateral cuff tear arthropathy with acromiohumeral osteoarthritis. The Respondent submitted that it relied on the evidence of Dr Journeaux in relation the Veteran’s shoulder condition preventing the alone test from being met.
[150] Exhibit 2, Joint Hearing Book, R8, pages 78-80, Respondent’s Statement of Facts, Issues and Contentions, paragraph 5.19.
The Veteran’s advocate on the other hand contended that it was the Veteran’s accepted bilateral knee condition alone that prevented him from continuing to undertake remunerative work. The Veteran sought to rely on the evidence provided by Dr Cunneen in that regard.
The Tribunal notes the case authorities set out above make it clear that any contribution that a non war-caused factor has to preventing or contributing to prevent the Veteran from continuing to undertake the relevant remunerative work will mean the alone test will not be satisfied. Those factors may be of only secondary weight and insufficient to in themselves to present the Veteran from continuing to undertake the relevant remunerative work.
As such the Tribunal must take into account any factor that plays a part or contributes to the Veteran being prevent from continuing to engage in remunerative work.
In undertaking such consideration, the Tribunal is mindful of the principle set out by Buchanan J in Smith that the entitlement of a veteran to be paid the pension at the intermediate or special rate is not to be judged only at the time that the application was made, but must be assessed by reference to any relevant circumstances which occur up to the time of decision. Buchanan J at [40] said that:
The entitlement may increase or decrease during that period, but provided that a pension was payable at some time during the assessment period a veteran will receive either the intermediate rate or the special rate, whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable.
In the absence of any evidence or submissions to the contrary, the Tribunal considers that there are no factors other than medical related factors that contributed to preventing the Veteran from continuing to engage in remunerative work.
In engaging with the medical evidence before it, together with the evidence provided by the Veteran and contentions made by the Respondent, the Tribunal considers that during the Assessment Period the relevant factors that should be taken into account in addition to the Veteran’s accepted bilateral knee condition include:
·Bilateral cuff tear arthropathy with glenohumeral osteoarthritis (bilateral shoulder condition)
·Depression
·Bilateral carpal tunnel
·Chronic back pain
·Epigastric pain
·Heart attack
The Tribunal does not accept the Veteran’s advocate’s contentions at the Hearing that the Veteran’s medical conditions other than his accepted bilateral knee conditions should not be taken into consideration. The Tribunal is required to assess whether those conditions contributed to the Veteran being prevented from undertaking remunerative work, regardless of the extend of such contribution. For the same reason the Tribunal does not accept the evidence of Dr Cunneen that for the totality of the assessment period the Veteran’s medical conditions other than his accepted bilateral knee conditions had no preventative effect on his ability undertake remunerative work.
Bilateral shoulder condition
It is not disputed that the Veteran has at times experienced bilateral shoulder pain or that he has a bilateral shoulder condition. The Respondent contended that it is this condition that primarily contributed to the Veteran being prevented from continuing to undertake remunerative work. The Respondent relied upon the written reports of Dr Journeaux.
In his reports, Dr Journeaux expressed the opinion that the Veteran’s bilateral shoulder pain contributed to why he was prevented from continuing to undertake remunerative work. However, at the Hearing, Dr Journeaux gave evidence that he had not considered whether that condition was present when the Veteran ceased work or how it affected his ability to work prior to his assessment of him on 3 November 2021. Dr Journeaux told the Tribunal that he had not asked the Veteran about this.
Dr Journeaux further told the Tribunal that based purely on the medical evidence and documentation he did not believe that the Veteran’s shoulders were troubling him unduly at the time he ceased work. Dr Journeaux’s evidence was that he suspected that the Veteran’s shoulder pain only became sufficiently troublesome when he sought an opinion from his general practitioner in mid-2020.
The Tribunal considers that when asked to consider the Veteran’s bilateral shoulder condition and whether it had any contribution to his being prevented from undertaking remunerative work in the period prior to his assessment, Dr Journeaux expressed an opinion that any such resulting contribution is likely to have commenced around the time he first sought an opinion from his general practitioner. The Tribunal notes that the Veteran first reported bilateral shoulder pain to Dr Ellis on 1 June 2020.
Dr Cunneen’s evidence was that the Veteran’s bilateral shoulder condition was not a factor in relation to the Veteran being prevented from undertaking remunerative work.
The Veteran gave evidence that his bilateral shoulder condition had been with him for a long time and that the pain was intermittent depending on the activities he undertook. The Veteran’s evidence was that this condition was well managed and it did not stop him from doing anything in particular he just had to be careful not to over extend.
Based on the evidence before it, and consistently with the evidence given by Dr Journeaux at the Hearing, the Tribunal considers that the Veteran’s bilateral shoulder condition did not contribute to him being prevented from undertaking remunerative work until at least

1 June 2020 when he reported the condition to Dr Ellis. Given the overall findings set out below, the Tribunal does not consider it necessary to make a finding with regards to the Veteran’s bilateral shoulder conditions contribution after that date.
Depression
The evidence before the Tribunal indicates that the Veteran has been prescribed anti-depressant medication by his general practitioner from 2011. The Veteran gave evidence that his depression had not impacted upon his ability to work. The Veteran disputed the opinion of Dr Patten that he was depressed when he saw him on 7 November 2017. The Veteran said that he was having pain and thought that something was wrong that could be addressed, however Dr Patten only offered him depression as being the issue. The Veteran said that as a result he sought a second opinion which is why he subsequently saw Dr Rimmington.
On 18 April 2018, Dr Pendleton commented that the Veteran’s mood seems to be quite buoyant.
The Tribunal notes that the extensive records from the Veteran’s general practitioner’s clinic and Dr Patten indicate that Dr Ellis was provided with copies of Dr Patten’s reports. Those records do not include any reference to referral to a psychologist or psychiatrist or any form of increase or change of medication or mental health treatment. Further, Dr Journeaux, having undertaken a full documentary review did not make reference to the Veteran’s depression being a medical condition impacting upon his ability to undertake remunerative work.
Based on the evidence before it, the Tribunal considers the Veteran’s depression to have been a chronic condition that has been well managed. In the absence of any evidence to the contrary the Tribunal considers that the Veteran’s depression did not during the Assessment Period contribute to him being prevented from undertaking remunerative work.
Bilateral carpal tunnel
It is not disputed that the Veteran underwent a right carpal tunnel and cubital tunnel decompression procedure on 30 July 2018 and a left carpal tunnel and cubital tunnel release procedure on 12 November 2018. The evidence before the Tribunal shows that the Veteran saw Dr Ellis in relation to his bilateral carpal tunnel and ulnar nerve compression in February 2018.
Dr Gervais reported that the bilateral carpal tunnel and cubital tunnel decompression procedures were successful. The Veteran gave evidence that his recovery time after those procedures was “a couple of months”.
The Tribunal notes that Dr Journeaux reported that in his view the Veteran’s other identified musculoskeletal abnormality or conditions and his medical comorbidities would not stop him from working.
The Veteran gave evidence that his bilateral carpal tunnel and ulnar nerve compression condition had not prevented him from writing or typing, rather it affected his grip strength.
Based on the evidence before it, the Tribunal considers that the Veteran’s bilateral carpal tunnel and ulnar nerve compression condition contributed to the Veteran being prevented from undertaking remunerative work before the commencement of the assessment period up until 6 to 8 weeks after the left carpal tunnel cubital tunnel release procedure was conducted.
The Tribunal consider that it is reasonable that as the surgeries completed by Dr Gervais were successful, that the recovery period would be 6 to 8 weeks which is consistent with the evidence provided by the Veteran. As such the Tribunal finds that the Veteran’s bilateral carpal tunnel and ulnar nerve compression condition ceased having a preventative nature from 7 January 2019.[151]
Back pain
[151] The Tribunal notes that given the effect of section 177 of the Act regardless of whether the Tribunal had of considered that it was reasonable to provide a recover period of 6, 8 or even 12 weeks the date from which the Veteran can be paid the pension at the Special Rate would not change.
The Respondent pointed to three references in the evidence before the Tribunal to the Veteran having chronic back pain as indicating that this condition precluded the Veteran from meeting the alone test. The Respondent make reference to:
(i)In January 2019, Dr Rimmington reported that the Applicant has chronic back problems.
(ii)The records of Dr Pendleton note that the spinal cord stimulation which was administered in February and March 2019 in relation to the Applicant’s knee pain, incidentally resulted in complete relief of his persistent back pain.
(iii)On 3 October 2019, Dr Roati identified the Applicant’s chronic pain syndrome as resulting from chronic back pain with subsequent spinal cord stimulator and chronic knee discomfort (osteoarthritis).
The Veteran gave evidence that his back pain began when he was in the Army however it was managed through fitness and exercise. He said that the pain was in his lower back which becomes painful at times but it has not really restricted him in doing anything.
The Veteran told the Tribunal that while the spinal cord stimulation did assist his back pain, that was not what it was inserted for. He had lived with the pain when it arises for a long time and it had not prevented him from undertaking his work.
The Tribunal notes that the results of an MRI of the Veteran’s lumbar spine that was taken on 14 November 2017 provided that the impression was of an essentially normal MRI of the lumbar spine. It was reported by Dr Patten that the MRI excluded any source of possible spinal pathology to explain the Veteran’s bilateral leg pain.
There are no particular references to the Veteran having reported back pain to his general practitioner in the medical practice’s summons material before the Tribunal.
Dr Pendleton has made it clear in his reports that the purpose of the spinal cord stimulator was to treat the Veteran’s knee pain.
The reference by Dr Rimmington noted that the Veteran had chronic back pain problems and that there was contemplation of a spinal cord stimulator for which he was under the care of Dr Pendleton. This reporting is contrary to the reports of Dr Pendleton and the records of Dr Ellis that clearly show that Dr Pendleton was providing pain management treatment relating to the Veteran’s chronic bilateral knee pain.
Further Dr Roati in outlining the Veteran’s current issues at 3 October 2019 included chronic pain syndrome as being: (a) chronic back pain with subsequent spinal cord stimulator and (b) chronic knee discomfort. Again, this reference is contrary to the reports of Dr Pendleton and it is unclear how the reference arose.
It appears to the Tribunal that both Dr Rimmington and Dr Roati have potentially mistakenly taken the Veteran’s spinal cord stimulator as being inserted to treat back pain rather than the bilateral knee pain it was actually intended to treat.
As such, on balance, the Tribunal is not satisfied that the reports of Dr Rimmington and

Dr Roati establish that the Veteran’s back pain had a preventative effect on him undertaking remunerative work.
Further while the spinal cord stimulator may have relieved any back pain the Veteran may have been experiencing at the time of Dr Pendleton’s records, there is no evidence to suggest that the Veteran’s back pain caused him to seek specific treatment during the Assessment Period, or that it had not been something that occurs from time to time of which the Veteran is well versed in managing.
The Tribunal notes that neither Dr Cunneen nor Dr Journeaux opined that the Veteran’s back pain had a preventative effect on him undertaking remunerative work at the date of their respective reports.
Consequently, based on the evidence before it, the Tribunal considers that the Veteran’s back pain did not contribute to him being prevented from undertaking remunerative work during the Assessment Period.
Epigastric pain
The evidence before the Tribunal indicates that the Veteran was experiencing epigastric pain in February 2020 (being when he reported symptoms to Dr Ellis). The medical evidence indicates that the Veteran continued to be affected by this condition until undergoing surgery on 21 May 2021, after which his symptoms were reported to have improved markedly.
The Veteran gave evidence at the Hearing that his epigastric pain symptoms have returned.
Neither Dr Cunneen nor Dr Journeaux opined that the Veteran’s epigastric pain condition had a preventative effect on him undertaking remunerative work at the date of their respective reports.
The Tribunal considers that the Veteran’s epigastric pain condition contributed to him being prevented from undertaking remunerative work from February 2020 up until

21 May 2020.
Heart Attack
The evidence before the Tribunal indicates that the Veteran had a heart attack on

7 September 2019 while in Bangkok with treatment being with a stent. The Veteran gave evidence that he did not have any ongoing symptoms from the heart attack after the stent procedure until March 2022 when he had another stent inserted.
The Tribunal notes that Dr Roati reported that the Veteran had episodes of atypical left sided chest pain in late September 2019 and that in December 2020 he experienced non-exertional episodes of upper abdominal and right sided chest discomfort.
The Tribunal considers that the Veteran’s heart attack contributed to him being prevented from undertaking remunerative work from between 7 September 2019 up until the end of September 2019. In the absence of further evidence the Tribunal considers it is also likely that the Veteran’s cardiology condition also contributed to him being prevented from undertaking remunerative work from December 2020 up until the end of March 2022.
Question 4 – Suffering a Loss of Salary, Wages or Earnings
This question considers whether the Veteran by reason of being prevented from continuing to undertake his previous work, suffered a loss of salary, wages or earnings that he would not be suffering if he were free of the incapacity.
The Veteran’s submissions are clear – if he was not unable to engaged in his usual remunerative employment due to his disability resulting from his bilateral knee condition he would have continued to be gainfully employed.
The evidence before the Tribunal includes various income tax statements[152] from years prior to the Veteran ceasing work. Based on that evidence and the discussion in relation to the Assessment Period and preceding three questions the Tribunal is satisfied that the Veteran has suffered a loss of salary or wages that he would not have suffered had he been free of his incapacity resulting from his bilateral knee condition.
Conclusion in relation to section 24(1)(c) of the Act
[152] Exhibit 1, T Documents, T20, pages 129-145, Veteran’s tax returns for the 2016-2017 financial year; T31, page 178, Income tax return estimate for the 2016-2017 financial year; T32,pages 184-202, Veteran’s tax return for the 2015-2016 financial year; and T32, pages 203-220, Veteran’s tax return for the 2017-2018 financial year.
The Tribunal is satisfied that the Veteran satisfied the requirements of section 24(1)(c) of the Act for the period between 7 January 2019 (being when the Veteran’s bilateral carpal tunnel condition is taken to have ceased to have a preventative impact on his ability to undertake remunerative work) and 7 September 2019 (being when the Veteran experienced a heart attack) .
Conclusion in relation to section 24 of the Act
Based on the evidence before it and as outlined in the above consideration the Tribunal finds that the Veteran:
(a)Met the requirements of section 24(1)(aa) of the Act from 22 March 2018.
(b)Met the requirements of section 24(1)(aab) of the Act from 22 March 2018.
(c)Met the requirements of section 24(1)(a) of the Act from 1 February 2018.
(d)Met the requirements of section 24(1)(b) of the Act from 22 March 2018.
(e)
Met the requirements of section 24(1)(c) of the Act from 1 January 2019 to

7 September 2019.
Consistently with the decision in Smith and section 19 of the Act the Tribunal finds that the Veteran is eligible to be paid the disability pension at the Special Rate pursuant to section 24 of the Act from 7 January 2019, being the date on which the Tribunal found that he first met all requirements of section 24(1) of the Act.
From what date should the Veteran be paid the Special Rate of Pension?
Noting that the Veteran made his application for review to the Tribunal outside of the prescribed timeframe, the Tribunal is conscious of the operation of section 177 of the Act.
Relevantly, section 177 provides:
Effective dates of certain determinations relating to payment of pension or seniors health card
(1)This section is in addition to, and not in substitution for, any of the provisions of section 43 of the Administrative Appeals Act 1975 in their application to proceedings for a review by the Administrative Appeals Tribunal of a reviewable decision.
(2)Where the Administrative Appeals Tribunal, upon application made under subsection 175(1) for a review of a decision of the Commission that has been affirmed or varied by a decision of the Board or a decision of the Board made in substitution for a decision of the Commission, grants a pension (not being a service pension or income support supplement) or attendant allowance, or increases the rate at which a pension (not being a service pension or income support supplement) is to be paid, the Tribunal may approve payment of the pension or of attendant allowance, or payment of the pension at the increased rate, as the case may be:
(a) if the application is made within 3 months after service on the applicant of a document setting out the terms of that decision of the Board--from a date not earlier than the earliest date as from which the Board could, if it had granted a pension or attendant allowance or increased the rate of the pension, have approved payment of the pension or attendant allowance, or payment of the pension at an increased rate, as the case may be; or
(b) in any other case:
(i) if the review relates to a claim in accordance with section 14 – from a date not more than 6 months before the date on which the application under subsection 175(1) was made; or
(ii) if the review relates to an application in accordance with section 15, or to an application for attendance allowance—from the date on which the application under subsection 175(1) was made.

The matter before the Tribunal relates to the Veteran’s claim for pension made pursuant to section 14 of the Act and as such section 177(2)(b)(i) of the Act applies.
The VRB decision was made on 19 February 2020 and was received by the Veteran on

11 of March 2020.[153] The Veteran’s application for review of that decision was received on 21 December 2020, which being outside of the three month timeframe prescribed for making such an application required an extension of time to be granted before the Veteran’s application could be considered by the Tribunal.
[153] Exhibit 1, T Documents, T2, page 4, Application for Review.
The parties did not provide any submissions in relation the application of section 177(2)(b)(i) of the Act.
The Tribunal considers that section 177(2)(b)(i) of the Act is clear in that the Tribunal in this instance has no discretion to increase the Veteran’s rate of pension from a date earlier than 6 months before the date on which he made his application to the Tribunal.[154]
[154] See Roberts and Repatriation Commission [1992] AATA 76; (1992) 15 AAR 192; (1992) 26 ALD 611.
As such even though the Tribunal has found that the Veteran met the requirements of section 24 of the Act from January 2019, the commencement date of when such eligibility to receive the pension at the Special Rate can not be before 21 June 2020. This being 6 months before the date the Veteran made his application for review of the decision to the Tribunal as it was made outside the statutory time frame of 3 months after receipt of the VRB decision.
The Tribunal therefore approves the increase to the Veteran’s rate of pension to the Special Rate in accordance with section 24 of the Act from 21 June 2020.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the Veteran is entitled to be paid the pension at the Special Rate from 7 January 2019 with effect from 21 June 2020.

I certify that the preceding 207 (two hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

............................[SGD]................................
Associate
Dated: 13 July 2023

Date of Hearing:

3 November 2022

Advocate for the Applicant: Mr Ken Cullen

Solicitor for the Respondent:
Ms Gillian Gehrke

Sparke Helmore Lawyers

Date of Hearing:	3 November 2022
Advocate for the Applicant:	Mr Ken Cullen
Solicitor for the Respondent:	Ms Gillian Gehrke
Sparke Helmore Lawyers